Alternative Dispute Resolution (ADR)

The Supreme Court amended Michigan Court Rules 2.401; 2.403; 2.404; 2.501; 2.502; 2.503; 3.216; 5.143 and adopted Michigan Court Rules 2.410 and 2.411, all of which provide for court-annexed alternative dispute resolution (“ADR”). This Court adopted an ADR plan under MCR 2.410(B).

Under MCR 2.410 and local administrative order 2002-1, the 20TH Judicial Circuit Court adopts the following ADR Plan, effective immediately:

Alternative Dispute Resolution (“ADR”) means “any process designed to resolve a legal dispute in the place of court adjudication.” ADR includes settlement conferences ordered under MCR 2.401; case evaluation under MCR 2.403; mediation under MCR2.411; domestic relations mediation under MCR 3.216; and other procedures provided by local court rule or ordered on stipulation of the parties; e.g. arbitration, summary jury trial.

All civil cases are subject to ADR processes unless otherwise provided by statute or court rule.

ADR Clerk

The Court shall employ a full time ADR Clerk The ADR Clerk shall maintain all records pertaining to the Court’s ADR Program, including applications for and lists of case evaluators, general civil mediators, and domestic relations mediators. The ADR Clerk shall be responsible for coordinating the referral of cases to ADR and tracking the progress of cases through ADR processes.

Providing Information About ADR

The ADR Clerk shall be responsible for providing information about the Court’s ADR Program to litigants and the general public. The Court will educate and inform the public about ADR options. The court will develop a form letter inviting anyone interested in providing mediation services to complete an application and a general public information brochure which will be available to the public. This brochure will include, among other things, information regarding the voluntary nature of ADR and a litigant’s right to object to mediation by timely motion, as well as the provisions for indigent litigants. The Court’s annual ADR report will also be made available to the public.

Case Evaluation, General Civil Mediation & Domestic Relations Mediation

Under MCR 2.403, the Court may submit any civil action in which the relief sought is primarily money damages or division of property to case evaluation (formerly known as court rules mediation). “Case evaluation” is a process by which a panel of three qualified case evaluators assess the relative strengths and weaknesses of the parties’ legal positions and immediately assign a monetary value to the case. Parties may accept or reject the evaluation. Unlike other forms of ADR, the court may order a party who rejects the evaluation to pay costs and attorney fees of the opposing party if the outcome of the case is not more favorable to the rejecting party. The court rules tell when sanctions apply.

Under MCR 2.411, the Court may refer any civil action to mediation. Under MCR 3.216, the Court may refer any contested issue in a domestic relations action to mediation. In “Mediation” a neutral third party facilitates talks between parties, assists in identifying issues, and helps explore solutions to promote a mutual acceptable settlement. A mediator has no final decision-making power and, the process itself will not involve monetary sanctions.

(1) CASE SCREENING: In most civil and domestic relations cases, before issuing its Scheduling Order, the Court shall determine whether the case is appropriate for case evaluation or mediation. The ADR Clerk shall routinely check the Court’s records to determine whether the parties are subject to a personal protection order or are involved in a child abuse and neglect proceeding. Such cases may not be referred to mediation without a hearing to determine whether mediation is appropriate.

(2) APPLICATION: An eligible person desiring to serve as a case evaluator, a general civil mediator and/or a domestic relations mediator may apply to the ADR clerk to be placed on the list of qualified case evaluators, general civil mediators or domestic relations mediators. Application forms are available in the office of the ADR clerk. The application form includes a certification that the applicant meets the requirements for service and that the applicant will not discriminate against parties, attorneys, other case evaluators or mediators on the basis of race, ethnic origin, gender or other protected personal characteristic.

(3) ELIGIBILITY: To be eligible to serve as a case evaluator, a person must meet the following qualifications:

The applicant must have been a practicing lawyer for at least five years and be a member in good standing of the State Bar of Michigan.
The applicant must reside, maintain an office, or actively practice in Ottawa County
The applicant must demonstrate that a substantial portion of the applicant’s practice for the last five years has been devoted to civil litigation matters, including investigation, discovery, motion practice, case evaluation, settlement, trial preparation and/or trial.
The applicant must have had an active practice in the subject area of the assigned sublist for at least the last three years.
Case evaluators must not discriminate against parties or attorneys on the basis of race, ethnic origin, gender, or other protected personal characteristic.
Case evaluators must comply with the Court’s ADR Plan, orders of the court regarding cases submitted to case evaluation, and conduct themselves with honesty, integrity and impartiality.

To be eligible to serve as a general civil mediator, a person must meet the following qualifications:

Complete a training program approved by the State Court Administrator providing the generally accepted components of mediation skills;
Have one or more of the following:
(i) Juris doctor degree or graduate degree in conflict resolution; or
(ii) 40 hours of mediation experience over two years including mediation, co-mediation, observation, and role-playing in the context of mediation.
Observe two general civil mediation proceedings conducted by an approved mediator, and conduct one general civil mediation to conclusion under the supervision and observation of an approved mediator.
An applicant who has specialized experience or training, but does not meet the specific requirement described above, may apply to the ADR Clerk for special approval. The ADR Clerk shall make the determination on the basis of criteria provided by the State Court Administrator. Service as a case evaluator under MCR 2.403 does not constitute a qualification for serving as a mediator.
Approved mediators are required to obtain eight hours of advanced mediation training during each two-year period. Failure to submit documentation establishing compliance is grounds for removal from the list.
General civil mediators must not discriminate against parties or attorneys on the basis of race, ethnic origin, gender, or other protected personal characteristic.
General civil mediators must comply with the Court’s ADR Plan, orders of the court regarding cases submitted to mediation, and the Standards of Conduct for Mediators promulgated by the State Court Administrator.

To be eligible to serve as a domestic relations mediator, a person must meet the following qualifications:

The applicant must

(i) be a licensed attorney, a licensed or limited licensed psychologist, a licensed professional counselor, or a licensed marriage or family therapist:
(ii) have a master’s degree in counseling, social work, or marriage and family therapy:
(iii) have a graduate degree in a behavioral science: or
(iv) have five years experience in family counseling.
The applicant must have completed a training program approved by the State Court Administrator providing the generally accepted components of domestic relations mediation skills.
The applicant must have observed two domestic relations mediation proceedings conducted by an approved mediator, and have conducted one domestic relations mediation to conclusion under the supervision and observation of an approved mediator.
An applicant who has specialized experience or training, but does not meet the specific requirements described above, may apply to the ADR Clerk for special approval. The ADR Clerk shall make the determination on the basis of criteria provided by the State Court Administrator. Service as a case evaluator under MCR 2.403 does not constitute a qualification for serving as a domestic relations mediator.
Approved mediators are required to obtain eight hours of advanced mediation training during each two-year period. Failure to submit documentation establishing compliance is grounds for removal from the list.
Domestic relations mediators must not discriminate against parties or attorneys on the basis of race, ethnic origin, gender, or other protected personal characteristic.
Domestic relations mediators must comply with the Court’s ADR Plan, orders of the court regarding cases submitted to mediation, and the Standards of Conduct for Mediators promulgated by the State Court Administrator.

Applications to serve as case evaluator or as a general civil or domestic relations mediator shall include a certification that the applicant agrees to fulfill the mediator’s responsibilities in an impartial manner consistent with the rules and practices of the court. The certificate for mediators will also state the fee that will be charged or the basis on which the applicant agrees to have the fee determined. The certificate for a domestic relations mediator must also state whether the applicant is willing to provide evaluative mediation.

(4) REVIEW OF APPLICATIONS: The Court will inform interested persons about the deadline for submitting applications. Any person interested in providing case evaluation of mediation services is invited to submit an application to the ADR Clerk. The ADR clerk will distribute all applications received since the last review process to the local bar association’s ADR Committee for review. The ADR Committee will meet at least annually to review applications and compile a list of qualified case evaluators, general civil mediators and domestic relations mediators. Persons meeting the qualifications specified in #3 above shall be placed on all lists for which they are qualified. The ADR committee shall also review all requests for special approval and make recommendations regarding approval to the Court. The ADR committee shall review the case evaluator list and designate each applicant as plaintiff, defense or neutral for use in assigning case evaluators to case evaluation panels. The ADR committee shall submit all lists to the 20th Circuit Court Judges for final review and approval. Selections shall be made without regard to race, ethnic origin, or gender. Except for the ADR Clerk, no person may serve on any committee reviewing applications more than three years in any nine-year period. No review committee or subcommittee may have less than three members.

Applicants who are not found qualified for placement on the list (s) shall be notified of that decision by the ADR Committee. Applicants will have 21 days to apply for reconsideration by the Circuit Court Judges. Any documents considered in the initial review process shall be retained for at least the 21 days described above. The appeal and all related documents must be filed with the ADR Clerk, with a copy to the Circuit Court Judges, and received within 21 days of the date the Committee decision was originally mailed.

(5) SPECIALIZED LISTS: Separate lists are maintained by the ADR Clerk for personal injury case evaluation panels, with appropriate designations for each case evaluator as plaintiff, defense or neutral; general civil case evaluation panels, with no designations; general civil mediators; domestic relations mediators for child related issues only and domestic relations mediators for property issues only or for both, with appropriate designations for each mediator as evaluative and non-evaluative; and mediation services.

(6) REAPPLICATION: Persons shall be placed on all lists for which they are qualified for a fixed period of time, not to exceed five years, and must reapply at the end of that period in the same manner as persons seeking to be added to the list.

(7) ADVANCED TRAINING: Every mediator on a Court-approved list must notify the ADR Clerk and provide written proof of having completed the requisite eight hours of advanced mediation training during each two-year period following appointment to a list. Failure to do so will be automatic grounds for removal from the list.

Domestic relations mediators must complete an in-service training program on how to identify cases which are not appropriate for mediation before being assigned to a domestic relations case.

The Court may require that case evaluators attend orientation or training sessions or may provide written materials explaining the case evaluation process and the operation of the Court’s case evaluation program. However, case evaluators may not be charged any fees or costs for such programs or materials.

(8) AVAILABILITY OF LISTS: The lists of case evaluators, mediators and mediation services are available to the public. Copies may be obtained from the ADR Clerk in the office of the Circuit Court Administrator.

(9) REMOVAL FROM LISTS: The Court may order that a person be prohibited from serving as a mediator or case evaluator for good cause. Claims of conflict of interest shall be resolved by the judge assigned to the case.

(10) ASSIGNMENT TO CASE EVALUATION PANELS: The Court will refer case to evaluation by an order of referral. The ADR Clerk assigns case evaluators to panels in a random or rotating manner that assures, as nearly as possible, that each case evaluator on a specialized list is assigned approximately the same number of cases over a period of one year. If a substitute case evaluator must be assigned, the same or similar assignment procedure shall be used to select the substitute, whenever possible. The ADR Clerk maintains records of service of case evaluators on panels and shall include those in the Court’s annual ADR report.

Specialized lists which designate plaintiff, neutral and defense oriented case evaluators shall include one member from each category to comprise a panel. This Circuit does not assign presiding judges to case evaluation panels.

On stipulation of the parties, the court may appoint a panel selected by the parties. In such a case, the qualification requirements do not apply, and the parties may agree to modification of the procedures for conduct of case evaluation. Nothing precludes parties from stipulating to other alternative dispute resolution procedures that may aid in resolution of the case.

Any party, by timely motion, may object to the referral of their case to case evaluation. The Court’s referral order makes this right clear to counsel and parties.

(11) ASSIGNMENT OF GENERAL CIVIL MEDIATORS: The Court will refer cases to general civil mediation by an order of referral. A list of court-approved mediators and mediation services will be provided to the parties. Except for good cause shown, the parties’ attorneys or the parties, if unrepresented, shall confer and select a mediator or mediation service within 14 days of the date of the order and notify the ADR Clerk. Within 21 days of the date of the order, the mediator or mediation service shall advise the ADR Clerk and all parties, in writing, who will be conducting the mediation and the date and time set for the mediation. The parties will provide the mediator with a copy of the court’s ADR referral order.

In the event that the parties do not notify the ADR Clerk of their selection within the 14 days allowed, the ADR Clerk will select a mediator without notice to the parties and advise the parties or their attorneys who will be conducting the mediation. The ADR Clerk will select a mediator in a random or rotating manner that assures, as nearly as possible, that each mediator on the list is assigned approximately the same number of cases over a period of one year. If a substitute mediator must be assigned, the same or similar assignment procedure shall be used to select the substitute, whenever possible. Once the ADR Clerk selects a mediator, the parties are responsible for any fees generated by that mediator or service.

Any party, by timely motion, may object to the referral of their case to mediation. The Court’s referral order makes this right clear to counsel and parties.

(12) ASSIGNMENT OF DOMESTIC RELATIONS MEDIATORS: The Court will refer contested issues in domestic relations cases to mediators by an order of referral. A list of court-approved domestic relations mediators and mediation services will be provided to the parties. Except for good cause shown, the parties’ attorneys, or the parties, if unrepresented, shall select a mediator or mediation service within 14 days of the date of the order. Within 21 days of the date of the order, the mediator or mediation service shall advise the ADR Clerk and all parties, in writing, who will be conducting the mediation and the date and time set for the mediation. The parties will provide the mediator with a copy of the Domestic Relations Scheduling Conference Order.

In the event that the parties do not notify the ADR Clerk of their selection within the 14 days allowed, the ADR Clerk shall select a mediator without notice to the parties and advise the parties and/or their attorneys who will be conducting the mediation. The ADR Clerk will select a mediator in a random or rotating manner that assures, as nearly as possible, that each mediator on the list is assigned approximately the same number of cases over a period of one year. If a substitute mediator must be assigned, the same or similar assignment procedure shall be used to select the substitute, whenever possible. Once the ADR Clerk selects a mediator, the parties are responsible for any fees generated by that mediator.

Any party, by timely motion, may object to the referral of their case to mediation. The Court’s referral order makes this right clear to counsel and parties.

(13) EVALUATIVE MEDIATION IN DOMESTIC RELATIONS CASES: The ADR Clerk shall note on the list of qualified domestic relations mediators which mediators are willing to provide evaluative mediation. Parties seeking evaluative mediation must notify the mediator. Within seven (7) days after the evaluative mediation, the mediator shall prepare and send a written report to the parties setting forth the mediator’s proposed recommendation for settlement purposes only and send a proof of service to the ADR Clerk. The parties shall, within seven (7) days of the date of service, accept or reject the recommendation and mediator in writing. If both parties accept the recommendation in full, the attorneys or the parties, if unrepresented, shall schedule a final hearing for entry of a judgment of divorce. If either party rejects the recommendation, the mediator shall report the results of the mediation to the ADR Clerk as provided in MCR 3.216(H)(6), and the case shall proceed toward trial.

(14) ROTATION REPORT: The ADR Clerk shall maintain records that reflect the number of times each mediator was used in a case in which the parties did not stipulate to their own mediator. The ADR Clerk shall prepare an annual report of this information. The annual report shall be made available to all mediators and the general public.

(15) MEDIATOR COMPENSATION: A mediator is entitled to reasonable compensation based on an hourly rate commensurate with the mediator’s experience and usual charges for services performed. Before mediation, the parties shall agree in writing on the amount of the fee, as well as the time and manner of payment in accordance with MCR 2.411(J).

Final Settlement Conference

A final settlement conference will be scheduled in every case after discovery has been completed, all motions have been heard and other ADR options have been explored. MCR2.401. The purpose of the final settlement conference is to give the parties and their counsel one last, court-assisted opportunity before trial to settle the case or to narrow the disputed issues and discuss how the trial will proceed. Each party and person(s) with authority to settle the case, as well as the attorney who will be trying the case, are required to attend. At the conference, the parties will tender a trial brief and marked exhibits to the Court. If the case is scheduled for a non-jury trial, they will also tender stipulated facts and proposed findings of fact and conclusions of law. If the case is scheduled for a jury trial, they will also tender written full text jury instructions and a proposed verdict form.

Arbitration & Other ADR Processes

Nothing in this ADR Plan shall preclude the parties from stipulating to an ADR process of their choice so long as the schedule for completing same does not interfere with the Courts scheduling and the orderly progression of the case. Parties are encouraged to pursue any form of ADR which they believe will assist them in resolving their disputes. Arbitration may be pursued through a private arbitrator or arbitration service or through the American Arbitration Association. Information regarding private arbitrators, local arbitration services and arbitration through the American Arbitration Association is available through the ADR Clerk.

ADR for Indigent Litigants

The Court shall take steps to make mediation available to indigent litigants. A litigant is “indigent” if he or she qualifies for the waiver or suspension of fees or costs in accordance with MCR 2.002(C) or (D).

The Court shall encourage mediators who receive referrals from the court to provide a portion of their services on a free or reduced fee basis. The Court may also refer indigent cases to the Community Dispute Resolution Service and this service has agreed to accept such referrals for a modest fee to be paid by the Court.

Supervision

The Chief Judge shall exercise general supervision over the implementation of this Plan and the case evaluator and mediator selection process and shall review the operation of the Court’s ADR Plan at least annually to assure compliance. In the event of non-compliance, the Court shall take such action as is needed. This action may include recruiting persons to serve as case evaluators and mediators or changing the Court’s ADR Plan. The Court shall develop a set of quality assurance questionnaires to be completed by the mediator, attorneys and litigants that will be distributed by the mediator at every mediation. The ADR Clerk will review the questionnaires and notify the Chief Judge of any concerns. The Court shall take such action as is needed to investigate and resolve any problems. The Court shall submit an annual report to the State Court Administrator on the operation of the Court’s ADR program on a form provided by the State Court Administrator.

In implementing the ADR Plan, the Court, Court employees, members of bar committees, and any other person involved in the application review procedure shall take all steps necessary to assure that as far as reasonably possible, the list of case evaluators fairly reflects the racial, ethnic and gender diversity of the members of the state bar in the jurisdiction for which the list is compiled who are eligible to serve as mediators.